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TMI Blog1970 (7) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication before the Inspecting Assistant Commissioner, Income-tax, to the effect that he had filed an appeal and was depositing Rs. 5,000 each and meanwhile no proceedings may be taken against him for the realisation of the aforementioned tax till the disposal of the appeal. On the 22nd of March, 1952, Sri R. N. Mattoo, Inspecting Assistant Commissioner, Income-tax, ordered that no proceedings be taken for the recovery of the tax assessed under the aforesaid order dated January 10, 1952, till the decision of the appeal, provided the plaintiff deposited a further sum of Rs. 5,000 by the 29th March, 1952. This amount was also deposited by the plaintiff within time, but, notwithstanding these orders, it was alleged that Sri Sukhdeo Prasad Nigam, defendant No. 2, who was then the Tahsildar Magistrate, Income-tax, Kanpur, issued notice to the plaintiff calling upon him to pay the amount of the tax within four days as certificate had been received under section 46, clause (2), of the Income-tax Act, through the Collector, Kanpur, for the recovery of the said amount and if the deposit was not made within time steps for recovery would be taken. The plaintiff applied to the Tahsildar Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit for damages stood dismissed with costs. In these circumstances the plaintiff has preferred this second appeal and prayed that the suit for Rs. 4,000 be decreed with costs throughout. The main points which were urged before me on behalf of the appellant were that the income-tax authorities were competent to pass the stay order and the order of the Income-tax Officer, dated April 13, 1953, was valid and within his jurisdiction, that the stay order was communicated to the defendants Nos. 1 and 2, and actually received in their office on April 14, 1953, and, thereafter, the defendants had no jurisdicton to proceed with the recovery and were bound to stay their hands and that, in the circumstances, the Additional District Magistrate and the Tahsildar Magistrate, Income-tax, Kanpur, acted plainly without jurisdiction and contrary to law, that they could not claim protection under section 67 of the Income-tax Act or section 233(m) of the U. P. Land Revenue Act, and they were liable for damages. The first point, therefore, which falls for consideration is as to the power of the income-tax authorities to pass the stay order in the circumstances of the case. The relevant facts are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 33, but after a recovery certificate has been issued no such order can be passed. The standing counsel appearing for the respondents has not been able to cite any authority in support of this proposition. In my opinion the language of section 45 makes it crystal clear that after the assessee has presented an appeal under section 30, the Income-tax Officer may treat the assessee as not in default as long as such appeal is undisposed of. It is, therefore, not possible to put a contrary construction on this section. Moreover, the recovery certificate can be issued under section 46 even before the filing of an appeal and it was not the intention of the legislature that once the recovery certificate was issued, it was irrevocable despite the assessee's approach to the superior authorities and his willingness to comply with such conditions as might be imposed upon him. It was not intended that the assessee should be precluded from obtaining a stay of the recovery proceedings and the authorities should become inexorable. On the contrary, the precise object of the legislature in enacting section 45 appears to be to confer jurisdiction on the Income-tax Officer concerned to afford relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at whether or not an assessee would be considered to be in default after an appeal is filed against an assessment is a matter entirely in the discretion of the Income-tax Officer, who has, however, to exercise his discretion after due regard to the circumstances of the case. I find force in the submission of the learned counsel for the appellant that, where a certificate is issued to the Collector, the amount does not become due to the Collector. He acts merely as an agent of the income-tax department for the purpose of making recovery and after the department itself treats the assessee as not in default, surely the recovery authorities cannot persist in prosecution of the recovery proceedings. In Union of India v. Firm Ralla Ram Raj Kumar a Division Bench of the Punjab High Court accepted the contention based on section 46(5A) of the Income-tax Act that the Collector should not be regarded as possessing larger powers than the Income-tax Officer when acting under section 46(2) of the Income-tax Act. Thus, I find no substance in the contention of the respondents' counsel that no stay order could be passed by the Income-tax Officer under section 45 of the Income-tax Act unless the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants and their action could not be said to be mala fide. Malice in that sense is not one of the necessary ingredients of "false imprisonment". In an action in tort for damages for false imprisonment the plaintiff has to prove: (a) his imprisonment, and (b) that it was caused by the defendants or his servants acting in the course of their employment. As Salmond remarks: "The wrong of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is". (Salmond on The Law of Torts, 1969 edition, page 160). In Lalta v. Asharfi Lal, Ghulam Hasan C. J. ruled: "In order to succeed in a suit for damages for wrongful arrest and detention it is not necessary for the plaintiff to prove malice.....". The distinction between an action of malicious prosecution and one for trespass, i.e., false imprisonment, is that, whereas in the former the plaintiff has to, prove the absence of reasonable and probable cause, in an action for trespass he has only to prove the trespass and it is for the defendant to justify the same. The next question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till be protection from civil liability unless the court knew or had the means of knowing certain facts which alone decided the court's jurisdiction." On an examination of the facts of the present case I have not the least doubt that the A.D.M., Rural Area, and the Tahsildar knew or at least had the means of knowing, which they without justification declined to avail themselves of, the fact that the recovery had been stayed and they were not competent to take further coercive measures against the appellant. Protection was also sought by the respondents under the provisions of section 67 of the Income-tax Act, and section 233(m) of the U. P. Land Revenue Act. Section 233(m) of the Land Revenue Act provides: "No person shall institute any suit or other proceedings in the civil court with respect to any of the following matters:... (m) claims connected with or arising out of, the collection of revenue (other than the claims under section 183), or any process enforced on account of an arrear of revenue, or on account of any sum which is by this or by any other Act is realizable as revenue." This provision in terms cannot apply to the present claim which was in tort. Even though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding case on the point is Spooner v. Juddow. Lord Campbell's remarks, while delivering opinion in that case, sum up the law: "Our books actually swarm with decisions putting a contrary construction upon such enactments, and there can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of statutes and according to law, they are entitled to the special protection which the legislature intended for them, although they have done an illegal act." In spite of the categorical allegations made in the successive applications presented by the appellant before the A.D.M., Rural Area, on which he himself ordered enquiry, it is not explained as to why the A.D.M., Rural Area, did not await the result of the enquiry and instead he submitted to the position that his subordinate Tahsildar, Income-tax, did not comply with his orders and failed to make any enquiry or submit a report. I have already referred to the entry in the peon book of the income-tax department as also to the statement of the Nazul clerk saying that the letter of the Income-tax Officer staying the recovery had been received in the Collectorate office. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof." In the instant case no objection was taken to the manner of proof of the document in the trial court and it was marked as exhibit 40. An objection with regard to the mode of proof cannot be raised for the first time in second appeal. Thus, I am satisfied that in the present case the appellant was arrested without lawful justification. His false imprisonment by the respondents has been conclusively established and the appellant is entitled to damages. The trial court had decreed the suit for a sum of Rs. 1,000 only, though in the plaint the plaintiff had claimed a sum of Rs. 10,000 as damages. In the second appeal before me, the appellant has asked for a decree of Rs. 4,000. Even though the trial court passed a decree for Rs. 1,000 only, I am inclined to take a serious view of the action of the respondents as the liberty of a citizen is involved. Dealing with the tort of false imprisonment, Salmond says (On the Law of Torts, 1969 edition) (page 160): "As it is derived from the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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